Citation Nr: 0917977
Decision Date: 05/13/09 Archive Date: 05/21/09
DOCKET NO. 04-25 655 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to an increased disability rating for a
service-connected lumbar spine disability, currently
evaluated 40 percent disabling.
2. Entitlement to an effective date prior to January 20,
2003 for the assignment of a 40 percent disability rating for
the service-connected lumbar spine disability.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
S. Bush, Counsel
INTRODUCTION
The Veteran served on active duty in the United States Air
Force from August 1963 to December 1978.
Service connection for a lumbar spine disability was awarded
in an April 1979 rating decision; a 10 percent disability
rating was assigned. Additional procedural history pertinent
to the issue will be set out where appropriate below.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal of an April 2003 rating decision of the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida (the RO), which increased the disability
rating for the Veteran's service-connected lumbar spine
disability to 40 percent, effective from January 20, 2003.
The Veteran perfected an appeal as to the disability rating
and the effective date assigned.
In May 2007 the Veteran presented sworn testimony as to these
two issues during a personal hearing in Washington, D.C.
which was chaired by the undersigned Veterans Law Judge. A
transcript of that hearing has been associated with the
Veteran's VA claims folder. The Veteran subsequently
submitted evidence directly to the Board. In October 2007,
the Veteran submitted a written waiver of consideration of
such evidence by the agency of original jurisdiction.
See 38 C.F.R. § 20.1304 (2008).
These issues were previously before the Board in November
2007, when they were remanded for additional development.
The case has been returned to the Board.
Issues not on appeal
In November 2007, the Board denied the Veteran's claims of
entitlement to service connection for bilateral hearing loss
and tinnitus. The Board's decision is final.
See 38 C.F.R. § 20.1100 (2008).
Issue not addressed in this decision
There is another issue on appeal, namely whether interruption
and discontinuance of Vocational Rehabilitation benefits
under Title 38, Chapter 31 United States Code was proper.
The Veteran has requested a personal hearing as to that
issue.
The Board is in the process of scheduling the Veteran for a
hearing on that issue. Action on that issue by the Board
will accordingly be deferred.
FINDINGS OF FACT
1. The Veteran's service-connected lumbar spine disability
is currently manifested by pain and slight limitation of
motion.
2. The competent medical evidence does not show that the
Veteran's service-connected lumbar spine disability is so
exceptional or unusual that referral for extraschedular
consideration by designated authority is required.
3. The Veteran appealed the RO's denial of a disability
rating in excess of
10 percent for his service-connected lumbar spine disability
in May 2000. In a May 2002 decision, the Board denied
entitlement to a disability rating in excess of 10 percent
for the service-connected lumbar spine disability.
4. A claim for an increased disability rating for the
service-connected lumbar spine disability was received on
March 10, 2003. In an April 2003 decision, the RO awarded a
40 percent rating for service-connected lumbar spine
disability, assigning an effective date of January 20, 2003.
CONCLUSIONS OF LAW
1. The criteria for the assignment of a disability rating in
excess of 40 percent for the service-connected lumbar spine
disability have not been met. 38 U.S.C.A. § 1155 (West
2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5292, 5293
(2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5242
(2008).
2. Application of extraschedular provisions is not warranted
in this case.
38 C.F.R. § 3.321(b) (2008).
3. The requirements for an effective date earlier than
January 20, 2003 for the assignment of a 40 percent
disability rating for the service-connected lumbar spine
disability have not been met. 38 U.S.C.A. §5110 (West 2002);
38 C.F.R.
§ 3.400 (o) (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran contends that his service-connected lumbar spine
disability warrants a higher disability rating than the
currently-assigned 40 percent. He also seeks an earlier
effective date for the assignment of a 40 percent rating for
the lumbar spine disability.
In the interest of clarity, the Board will first discuss
certain preliminary matters. The Board will then render a
decision.
Stegall considerations
As was alluded to in the Introduction, the Board remanded the
claims in November 2007. In essence, the Board instructed
the agency of original jurisdiction (AOJ) to obtain
identified records from Wesley Chapel Chiropractic and
provide the Veteran with an updated VA spine examination.
The AOJ was then to readjudicate the claims.
Records from Wesley Chapel Chiropractic were subsequently
associated with the claims folder, and the Veteran presented
for a VA examination in November 2008. The Appeals
Management Center (AMC) subsequently readjudicated the claims
in the March 2009 SSOC.
Thus, all of the Board's remand instructions have been
complied with.
See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the
remand orders of the Board are not complied with, the Board
errs as a matter of law when it fails to ensure compliance].
The Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA includes an enhanced duty on the part of VA to
notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits. The VCAA
also redefines the obligations of VA with respect to its
statutory duty to assist claimants in the development of
their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002).
The Board has carefully considered the provisions of the VCAA
and the implementing regulations in light of the record on
appeal, and for reasons expressed immediately below finds
that the development of the issues has proceeded in
accordance with the provisions of the law and regulations.
Standard of review
In general, after the evidence has been assembled, it is the
Board's responsibility to evaluate the entire record. See 38
U.S.C.A. § 7104(a) (West 2002). When there is an approximate
balance of evidence regarding the merits of an issue material
to the determination of the matter, the benefit of the doubt
in resolving each such issue shall be given to the claimant.
See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R.
§§ 3.102, 4.3 (2008).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the
United States Court of Appeals for Veterans Claims (the
Court) stated that "a veteran need only demonstrate that
there is an 'approximate balance of positive and negative
evidence' in order to prevail." To deny a claim on its
merits, the preponderance of the evidence must be against the
claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert, 1 Vet. App. at 54.
Notice
The VCAA requires VA to notify the claimant and the
claimant's representative of any information and any medical
or lay evidence not previously provided to VA that is
necessary to substantiate the claim. As part of the notice,
VA is to specifically inform the claimant and the claimant's
representative of which portion of the evidence is to be
provided by the claimant and which part VA will attempt to
obtain on behalf of the claimant. See 38 U.S.C.A. § 5103
(West 2002); see also Quartuccio v. Principi, 16 Vet. App.
183 (2002) [a letter from VA to an appellant describing
evidence potentially helpful to the appellant but not
mentioning who is responsible for obtaining such evidence did
not meet the standard erected by the VCAA].
With respect to the earlier effective date claim, the Board
finds that no VCAA notice is necessary. Specifically, in
Manning v. Principi, 16 Vet. App. 534 (2002), citing Livesay
v. Principi, 15 Vet. App. 165 (2001), the Court held that the
VCAA has no effect on an appeal where the law, and not the
underlying facts or development of the facts, is dispositive
of the matter. The Board finds that such is the case as to
the issue here on appeal. The facts in this case, which
involve the assignment of an effective date, are not in
dispute. Application of pertinent provisions of the law and
regulations will determine the outcome. No amount of
additional evidentiary development would change the outcome
of this case; therefore no VCAA notice is necessary. See
DelaCruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA
notice not required where there is no reasonable possibility
that additional development will aid the claimant].
Specifically, the Court has held that a Veteran claiming
entitlement to an earlier effective date is not prejudiced by
failure to provide him with VCAA notice of the laws and
regulations governing effective dates, if, based on the facts
of the case, entitlement to an earlier effective date is not
shown as a matter of law.
See Nelson v. Principi, 18 Vet. App. 407, 410 (2004).
Crucially, the RO informed the Veteran of VA's duty to assist
him in the development of his claims in letters from the RO
dated March 24, 2003; May 19, 2003, and April 15, 2005 and a
letter from the AMC dated December 18, 2007, which advised
the Veteran of the provisions relating to the VCAA.
Specifically, the Veteran was advised in the letters that VA
would obtain all evidence kept by the VA and any other
Federal agency, including VA facilities and service medical
records. He was also informed that VA would, on his behalf,
make reasonable efforts to obtain relevant private medical
records that the he identified. Included with the March
2003, May 2003 and December 2007 letters were copies of VA
Form 21- 4142, Authorization and Consent to Release
Information, and these letters asked that the Veteran
complete this release so that VA could obtain these records
on his behalf. The letters also informed the Veteran that
for records he wished for VA to obtain on his behalf he must
provide enough information about the records so that VA can
request them from the person or agency that has them.
The May 2003 letter specifically advised the Veteran that to
substantiate his increased rating claim "the evidence must
show that your service-connected condition has gotten
worse." See the May 19, 2003 letter at page 4; see also the
April 15, 2005 letter at page 2 and the December 18, 2007
letter at page 4.
In the April 2005 letter, the Veteran was specifically
notified to describe or submit any additional evidence which
he thought would support his claims, in compliance with the
"give us everything you've got" requirement contained in
38 C.F.R. § 3.159 (b). See the April 15, 2005 letter at page
1. [The Board notes that 38 C.F.R. § 3.159 was revised,
effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30,
2008). The amendments apply to applications for benefits
pending before VA on, or filed after, May 30, 2008. The
amendments, among other things, removed the notice provision
requiring VA to request the Veteran to provide any evidence
in the Veteran's possession that pertains to the claim. See
38 C.F.R. § 3.159(b)(1).]
In short, the record indicates that the Veteran received
appropriate notice under 38 U.S.C.A. § 5103.
Finally, there have been two significant Court decisions
concerning the VCAA.
In the first, Dingess v. Nicholson, 19 Vet. App. 473 (2006),
the Court observed that a claim of entitlement to service
connection consists of five elements: (1) Veteran status;
(2) existence of a disability; (3) a connection between the
Veteran's service and the disability; (4) degree of
disability; and (5) effective date. Because a claim is
comprised of five elements, the notice requirements of
section 5103(a) apply generally to all five elements of that
claim. Therefore, upon receipt of an application for a
service connection claim, section 5103(a) and section
3.159(b) require VA to review the information and the
evidence presented with the claim and to provide the claimant
with notice of what information and evidence not previously
provided, if any, will assist in substantiating or is
necessary to substantiate the elements of the claim. This
includes notice that a disability rating and an effective
date for the award of benefits will be assigned if service
connection is awarded.
In this case, elements (1), (2) and (3) are not at issue.
The Veteran received notice as to elements (4) and (5),
degree of disability and effective date, in a letter from the
RO dated March 20, 2006 as well as the above-referenced
December 2007 letter.
The Board has also considered the Court's recent decision in
Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), which held
that for an increased-compensation claim, section § 5103(a)
requires, at a minimum, that VA notify the claimant that, to
substantiate a claim, the claimant must provide, or ask VA to
obtain, medical or lay evidence demonstrating a worsening or
increase in severity of the disability and the effect that
worsening has on the claimant's employment and daily life.
Additionally, the claimant must be notified that, should an
increase in disability be found, a disability rating will be
determined by applying relevant Diagnostic Codes, which
typically provide for a range in severity of a particular
disability from noncompensable to as much as 100 percent
(depending on the disability involved), based on the nature
of the symptoms of the condition for which disability
compensation is being sought, their severity and duration,
and their impact upon employment and daily life.
The notice must also provide examples of the types of medical
and lay evidence that the claimant may submit (or ask VA to
obtain) that are relevant to establishing entitlement to
increased compensation, e.g., competent lay statements
describing symptoms, medical and hospitalization records,
medical statements, employer statements, job application
rejections, and any other evidence showing an increase in the
disability or exceptional circumstances relating to the
disability.
See Vazquez-Flores, 22 Vet. App. at 43-44.
The Board observes that the Veteran was not informed of the
relevant law and regulations pertaining to his increased
rating claim as contemplated in the recent Vazquez decision.
However, the essential fairness of the adjudication was not
affected because the Veteran had actual knowledge of what was
necessary to substantiate this claim. See Sanders v.
Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The Veteran has
submitted argument which specifically referenced symptoms
listed under the Diagnostic Codes utilized in rating his
claim and made specific argument as to how his disability had
increased in severity and the effect that increase had on his
employment and daily life. See, e.g., the Veteran's
statement attached to his June 2004 substantive appeal (VA
Form 9). Moreover, the Veteran and his representative
discussed the reasons he met the evidentiary burdens
necessary to allow for the grant of his increased rating
claim during the May 2007 hearing. It is therefore clear
that the Veteran was aware of the applicable schedular
standards.
Accordingly, due to the content of the notice given and the
Veteran's actual knowledge, the Board finds that the Veteran
has received appropriate VCAA notice to include as
contemplated by the Court in Vazquez-Flores.
The Board is of course aware of the Court's decision in
Pelegrini v. Principi, 17 Vet. App. 412 (2004), which appears
to stand for the proposition that VCAA notice must be sent
prior to adjudication of an issue by the RO. Crucially, the
Veteran was provided with VCAA notice through the March 2003,
May 2003, April 2005, March 2006 and December 2007 VCAA
letters and his claims was readjudicated in the March 2009
SSOC, after he was provided with the opportunity to submit
evidence and argument in support of his claims and to respond
to the VA notice. Thus, any VCAA notice deficiency has been
rectified, and there is no prejudice to the Veteran in
proceeding to consider his claims on the merits. The Veteran
has pointed to no prejudice resulting from the timing of the
VCAA notice.
Because there is no indication that there exists any evidence
which could be obtained which would have an effect on the
outcome of this case, no further VCAA notice is necessary.
See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA
notice not required where there is no reasonable possibility
that additional development will aid the Veteran].
Duty to assist
In general, the VCAA provides that VA shall make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate a claim for VA benefits, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. The law provides that the
assistance provided by VA shall include providing a medical
examination or obtaining a medical opinion when such an
examination or opinion is necessary to make a decision on the
claim.
See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159
(2008).
The Board finds that reasonable efforts have been made to
assist the Veteran in obtaining evidence necessary to
substantiate his claims. In particular, the RO has obtained
the Veteran's reports of private outpatient treatment and a
VA MRI report, as well as the report of a VA examination of
the Veteran in November 2008.
The Board additionally observes that all appropriate due
process concerns have been satisfied. See 38 C.F.R. § 3.103
(2008). The Veteran has been accorded the opportunity to
secure the service of a representative and to present
evidence and argument in support of his claims. As noted in
the Introduction, he testified before the undersigned in May
2007.
Accordingly, the Board will proceed to a decision.
1. Entitlement to an increased disability rating for a
service-connected lumbar spine disability, currently
evaluated 40 percent disabling.
Relevant law and regulations
Disability ratings - in general
Disability ratings are assigned in accordance with the VA's
Schedule for Rating Disabilities and are intended to
represent the average impairment of earning capacity
resulting from disability. See 38 U.S.C.A. § 1155 (West
2002);
38 C.F.R. §§ 3.321(a), 4.1 (2008). Separate diagnostic codes
identify the various disabilities. See 38 C.F.R. Part 4.
Specific rating criteria
During the pendency of this appeal, the applicable rating
criteria for the spine, found at 38 C.F.R. § 4.71a, were
amended effective September 26, 2003.
See 68 Fed. Reg. 51, 454-51, 458 (Aug. 27, 2003).
Where a law or regulation changes after the claim has been
filed, but before the administrative or judicial process has
been concluded, the version most favorable to the Veteran
applies unless Congress provided otherwise or permitted the
Secretary of VA to do otherwise and the Secretary did so.
See VAOGCPREC 7-2003.
VA's Office of General Counsel has determined that the
amended rating criteria can be applied only for the period
from and after the effective date of the regulatory change.
The Board can apply only the former regulation to rate the
disability for periods preceding the effective date of the
regulatory change. However, the former rating criteria may
be applied prospectively, beyond the effective date of the
new regulation. See VAOPGCPREC 3-2000.
The Veteran has been provided with both the former and the
current regulatory criteria. The increased rating claim was
readjudicated under the current schedular criteria in the
June 2004 statement of the case (SOC). The Veteran has
submitted written statements subsequent to the June 2004 SOC;
they did not indicate that there was any additional
information or evidence to submit other than that which has
already been obtained. Therefore, there is no prejudice to
the Veteran in the Board adjudicating the claim. See Bernard
v. Brown, 4 Vet. App. 384 (1993).
The relevant diagnostic code for rating degenerative
arthritis, Diagnostic Code 5003, has remained essentially
unchanged. Diagnostic Code 5003 specifies that degenerative
arthritis established by X-ray findings will be rated on the
basis of limitation of motion under the appropriate
diagnostic code for the specific joint or joints involved.
In the absence of limitation of motion, a 10 percent rating
may be assigned.
(i.) The former schedular criteria
Under former Diagnostic Code 5292, severe limitation of
motion of the lumbar spine warrants a 40 percent rating. See
38 C.F.R. § 4.71a, Diagnostic Code 5292 (prior to September
26, 2003).
Diagnostic Code 5293, effective prior to September 23, 2002,
provided a 60 percent rating for pronounced intervertebral
disc syndrome, with persistent symptoms compatible with
sciatic neuropathy with characteristic pain and demonstrable
muscle spasm, absent ankle jerk, or other neurological
findings appropriate to the site of the diseased disc, and
little intermittent relief. A 40 percent rating was
warranted for severe intervertebral disc syndrome, with
recurrent attacks with intermittent relief. See 38 C.F.R. §
4.71a, Diagnostic Code 5293 (prior to September 23, 2002).
Under Diagnostic Code 5293, effective September 23, 2002 to
September 25, 2003, intervertebral disc syndrome
(preoperatively or postoperatively) is to be rated either on
the total duration of incapacitating episodes over the past
12 months or by combining under Section 4.25 separate
evaluations of its chronic orthopedic and neurologic
manifestations along with evaluations for all other
disabilities, whichever method results in the higher
evaluation. Incapacitating episodes having a total duration
of at least six weeks during the past 12 months warrant a 60
percent evaluation. Incapacitating episodes having a total
duration of at least four weeks but less than 6 weeks during
the past 12 months warrant a 40 percent evaluation.
See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (from September
23, 2002 to September 25, 2003).
Note (1): For purposes of evaluations under 5293, an
incapacitating episode is a period of acute signs and
symptoms due to intervertebral disc syndrome that requires
bed rest prescribed by a physician and treatment by a
physician. "Chronic orthopedic and neurologic
manifestations" means orthopedic and neurologic signs and
symptoms resulting from intervertebral disc syndrome that are
present constantly, or nearly so. Id.
This rating criteria was essentially unchanged, although
renumbered, when the new rating formula for rating
disabilities of the spine became effective September 26,
2003. The criteria effective as of that date will be set
forth below.
(ii.) The current schedular criteria
The current schedular rating criteria instructs to evaluate
intervertebral disc syndrome either under the general rating
formula for diseases and injuries of the spine or under the
formula for rating intervertebral disc syndrome based on
incapacitating episodes, whichever method results in the
higher evaluation.
The General Rating Formula for Diseases and Injuries of the
Spine
Effective September 26, 2003, a general rating formula for
diseases and injuries of the spine will provide that with or
without symptoms such as pain, stiffness, or aching in the
area of the spine affected by residuals of injury or disease
the following ratings will apply. This formula encompasses
current Diagnostic Code 5243 [intervertebral disc syndrome].
A 100 percent rating is warranted for unfavorable ankylosis
of the entire spine.
A 50 percent rating is warranted for unfavorable ankylosis of
the entire thoracolumbar spine.
Note (5): For VA compensation purposes, unfavorable ankylosis
is a condition in which the entire cervical spine, the entire
thoracolumbar spine, or the entire spine is fixed in flexion
or extension, and the ankylosis results in one or more of the
following: difficulty walking because of a limited line of
vision; restricted opening of the mouth and chewing;
breathing limited to diaphragmatic respiration;
gastrointestinal symptoms due to pressure of the costal
margin on the abdomen; dyspnea or dysphagia; atlantoaxial or
cervical subluxation or dislocation; or neurologic symptoms
due to nerve root stretching. Fixation of a spinal segment
in neutral position (zero degrees) always represents
favorable ankylosis.
See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (effective
from September 26, 2003).
The Formula for Rating Intervertebral Disc Syndrome Based on
Incapacitating Episodes (in pertinent part):
A 60 percent disability rating is warranted with
incapacitating episodes having a total duration of at least 6
weeks during the past 12 months.
Note (1): For purposes of evaluations under diagnostic code
5243, an incapacitating episode is a period of acute signs
and symptoms due to intervertebral disc syndrome that
requires bed rest prescribed by a physician and treatment by
a physician.
See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (effective from
September 26, 2003).
Rating musculoskeletal disabilities
The evaluation of a service-connected disability involving a
joint rated on limitation of motion requires adequate
consideration of functional loss due to pain under 38 C.F.R.
§ 4.40 and functional loss due to weakness, fatigability,
incoordination or pain on movement of a joint under 38 C.F.R.
§ 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995).
The basis of disability evaluations is the ability of the
body as a whole to function under the ordinary conditions of
daily life, including employment. 38 C.F.R. § 4.10 (2008).
Disability of the musculoskeletal system is primarily the
inability to perform the normal working movements of the body
with normal excursion, strength, speed, coordination and
endurance. 38 C.F.R. § 4.40 (2008). Consideration is to be
given to whether there is less movement than normal, more
movement than normal, weakened movement, excess fatigability,
incoordination, pain on movement, swelling, deformity,
atrophy of disuse, instability of station, or interference
with standing, sitting, or weight bearing. 38 C.F.R. § 4.45
(2008).
Analysis
Mittleider concerns
The November 2008 VA examiner indicated that the Veteran
evidenced "hypersensitivity with least stimuli (like
touching the skin with a vibrating fork, turning the neck, or
raising the knee) causing him to have involuntary spasm of
the entire body." This problem was also acknowledged by
M.W., M.D., in his January 2008 evaluation of the Veteran.
The Board is precluded from differentiating between
symptomatology attributed to a nonservice-connected
disability and a service-connected disability, in the absence
of medical evidence which does so. See Mittleider v. West,
11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet.
App. 136, 140 (1996). In this case, the November 2008 VA
examiner specifically found that the above-referenced problem
"is not related to the lumbar spine." Accordingly, such
symptomatology will not be considered in the adjudication of
the increased rating claim.
Esteban considerations
Under VA regulations, separate disabilities arising from a
single disease entity are to be rated separately. See 38
C.F.R. § 4.25 (2008); see also Esteban v. Brown,
6 Vet. App. 259, 261(1994). However, the evaluation of the
same disability under various diagnoses is to be avoided.
See 38 C.F.R. § 4.14 (2008); see also Fanning v. Brown, 4
Vet. App. 225 (1993).
The Veteran has argued that he is entitled to separate
disability ratings for segmental dysfunction of the lumbar
spine, lumbar disc syndrome with sciatica, lumbar
degenerative disc disease and lumbar myospasms. See the June
30, 2004 substantive appeal. These diagnoses were rendered
by chiropractor A.M.R. in January 2003. However, even
assuming for the sake of argument that a number of lumbar
spine disabilities exist, the symptomatology associated
therewith, principally pain and limited motion, is identical.
There is no indication in the medical records that the back
disability(ies) requires separate methods of treatment.
In essence, there is one low back disability. To rate the
lumbar spine disability as four separate disabilities would
amount to prohibited pyramiding under 38 C.F.R.
§ 4.14. The Board declines to do so.
Assignment of diagnostic code
The assignment of a particular Diagnostic Code is
"completely dependent on the facts of a particular case."
See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One
Diagnostic Code may be more appropriate than another based on
such factors as an individual's relevant medical history, the
current diagnosis, and demonstrated symptomatology. Any
change in Diagnostic Code by a VA adjudicator must be
specifically explained. See Pernorio v. Derwinski, 2 Vet.
App. 625, 629 (1992). In this case, the Board has considered
whether another rating code is "more appropriate" than the
one used by the RO. See Tedeschi v. Brown, 7 Vet. App. 411,
414 (1995).
(i.) The former schedular criteria
The Veteran's service-connected lumbar spine disorder is
rated under former Diagnostic Code 5292 [limitation of motion
of the lumbar spine]. The medical evidence of record, which
will be discussed in greater detail below, indicates that the
Veteran's service-connected low back disability manifests
primarily as back pain and limitation of motion, which is
congruent with Diagnostic Code 5292. Moreover, X-ray studies
taken during the November 2008 VA examination demonstrate the
presence of degenerative arthritis. Degenerative arthritis
is rated based on limitation of motion of the affected joint.
See 38 C.F.R. § 4.71a, Diagnostic Code 5003. The Board
therefore believes that rating the Veteran under former
Diagnostic Code 5292 [spine, limitation of motion of, lumbar]
is appropriate.
The Board will also rate the Veteran under former Diagnostic
Code 5293 [intervertebral disc syndrome] based the Veteran's
complaints of neuropathic type symptoms.
The Veteran's claim has been considered in the past under
former Diagnostic Code 5295 [lumbosacral strain]. See an
April 1979 RO rating decision and a May 2002 Board decision.
However, the Board believes that rating the Veteran under
former Diagnostic Code 5295, lumbar spine strain, is
inappropriate. The Veteran does not demonstrate lumbar
symptomatology compatible with the criteria listed under
Diagnostic Code 5295 other than painful motion, which is
contemplated in Diagnostic Code 5292. Moreover, employment
of former Diagnostic Code 5295, which has a maximum rating of
40 percent, would not allow for assignment of an increased
disability rating.
The Veteran has asked for consideration of former Diagnostic
Codes 5289 [spine, ankylosis of, lumbar] and 5290 [spine,
limitation of motion, cervical] to rate his lumbar spine
disability. See, e.g., the Veteran's July 31, 2003 statement
and June 30, 2004 substantive appeal. There is no indication
of lumbar spine ankylosis in the medical evidence of record.
Ankylosis is "immobility and consolidation of a joint due to
disease, injury, surgical procedure." See Lewis v.
Derwinski, 3 Vet. App. 259 (1992) [citing Saunders
Encyclopedia and Dictionary of Medicine, Nursing, and Allied
Health at 68 (4th ed. 1987)]. During the November 2008 VA
examination, the Veteran was able achieve 80 degrees of
flexion, 30 degrees of extension, 30 degrees of lateral
flexion bilaterally and 30 degrees of rotation bilaterally.
It is thus manifest that the Veteran's lumbar spine is not
immobile and Diagnostic Code 5289 will not be considered.
Additionally, Diagnostic Code 5290 pertains to cervical spine
disabilities and is irrelevant to the instant claim.
(ii.) The current schedular criteria
With respect to the current schedular criteria, all lumbar
spine disabilities, with the exception of intervertebral disc
syndrome, are rated using the same criteria, the General
Rating Formula for Diseases and Injuries of the Spine. See
38 C.F.R.
§ 4.71a, Diagnostic Codes 5235-5242 (2008).
Intervertebral disc syndrome may be alternatively rated under
the Formula for rating Intervertebral Disc Syndrome Based on
Incapacitating Episodes.
See 38 C.F.R. § 4.71a, Diagnostic Code 5243. This formula,
however, requires incapacitating episodes, with bed rest as
prescribed by a physician. In this case, there is no medical
evidence anywhere of record of physician-prescribed bed rest
or a period of acute signs and symptoms requiring treatment
by a physician.
Thus, with respect to the current schedular criteria the
Veteran's service-connected lumbar spine disability
accordingly will be rated using only the General Rating
Formula for Diseases and Injuries of the Spine.
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Schedular rating
(i.) The former schedular criteria
Former Diagnostic Code 5292
As detailed in the law and regulations above, 40 percent is
the maximum rating available under Diagnostic Code 5292.
Former Diagnostic Code 5293
Under the former version of the rating schedule, to warrant a
60 percent disability rating on the basis of intervertebral
disc syndrome, the evidence must show pronounced
intervertebral disc syndrome with persistent symptoms
compatible with sciatic neuropathy, with characteristic pain
and demonstrable muscle spasm, absent ankle jerk, or other
neurological findings appropriate to the site of the diseased
disc, and with little intermittent relief. Sixty percent is
the maximum disability rating under Diagnostic Code 5293.
There is no objective medical evidence of "persistent
symptoms compatible with sciatic neuropathy." Radiculopathy
was noted in an April 2003 record of M.I.S., M.D. The
Veteran complained of pain radiating into his left leg to Dr.
M.W. in January 2008; however, this appears to have resolved,
as the Veteran specifically denied radiating pain at the
November 2008 VA examination. In any event, there is clearly
no evidence of "persistent symptoms".
Moreover, to the extent the Veteran has complained of
occasional pain radiating into the lower extremities, no
specific neurologic impairment or resulting functional loss
has been identified in the evidence. On the contrary, an
April 2003 MRI report of record was completely negative for
neurological impairment. Moreover, deep tendon reflexes and
strength testing was normal during the January 2008
evaluation by Dr. M.W.; and on VA examination in November
2008, motor, sensory and reflex testing was normal.
Moreover, no bladder or bowel dysfunction has been
identified. The Veteran specifically denied bladder or bowel
problems during the November 2008 VA examination.
Characteristic pain has been demonstrated in the evidence.
Pursuant to former Diagnostic Code 5293, such must be
accompanied by demonstrable muscle spasm. See Melson v.
Derwinski, 1 Vet. App. 334 (1991) [use of the conjunctive
"and" in a statutory provision meant that all of the
conditions listed in the provision must be met]. The medical
evidence is negative for demonstrable muscle spasm. A
January 2003 record from A.M.R., D.C., indicates the presence
of lumbar spine spasm. However, muscle spasm was not
identified in a subsequent April 2003 MRI report or the April
2003 record from Dr. M.I.S. The Veteran reported muscle
spasm to Dr. M.W. in January 2008; however, none was
identified upon objective physical examination.
Significantly, the Veteran specifically denied muscle spasm
during the November 2008 VA examination. In short, the one
finding of muscle spasm in January 2003 has not been
replicated.
There is also no indication of absent ankle jerk or other
neurological findings appropriate to the site of the diseased
disc. As explained above the April 2003 MRI report is
negative for any neurological findings such as sciatica or
radiculopathy and neurological testing during the November
2008 VA examination was normal.
Finally, there is no evidence that the Veteran's service-
connected lumbar spine disorder caused "little intermittent
relief." It does not appear from the medical reports that
the Veteran was seeking medical attention for his back
disability on a consistent basis during the period in
question. Instead, he appears to have sought treatment in
January 2003 and April 2003, then he did not present for
further treatment until January 2008. Indeed, during the
November 2008 VA examination the Veteran indicated that his
low back pain had improved since his last VA examination in
February 2001 and that he was no longer taking any
medication.
In short, there is little evidence which suggests the
Veteran's lumbar spine disorder has met any of the criteria
for pronounced intervertebral disc syndrome. Accordingly, a
disability rating in excess of 40 percent is not warranted
under former Diagnostic Code 5293.
(ii.) The current schedular criteria
Under the current schedular criteria, to warrant a 50 percent
disability rating under the General Rating Formula for
Diseases and Injuries of the Spine, the Veteran must show or
ankylosis of the thoracolumbar spine. As was discussed
above, there is no evidence of ankylosis of the Veteran's
lumbar spine. During the November 2008 VA examination the
Veteran was able achieve 80 degrees of flexion, 30 degrees of
extension, 30 degrees of lateral flexion bilaterally and 30
degrees of rotation bilaterally. It is obvious that the
Veteran's lumbar spine is not immobile.
Accordingly, the Veteran's service-connected lumbar spine
disorder does not warrant a 50 percent or higher percent
rating under the General Rating Formula for Diseases and
Injuries of the spine. As has already been discussed rating
the Veteran's back disability as intervertebral disc syndrome
is not appropriate, since there is no evidence of
incapacitating episodes, with bed rest as prescribed by a
physician.
Based on this record, and for reasons stated above, the Board
finds that the Veteran is not entitled to an increased
disability rating under the current schedular criteria.
DeLuca considerations
In evaluating the Veteran's increased rating claim, the Board
must also address the provisions of 38 C.F.R. §§ 4.40 and
4.45 (2008). See DeLuca, supra.
With respect to the former schedular criteria, the Board
notes that where, as here, the Veteran is already receiving
the maximum disability rating for limitation of motion [under
Diagnostic Codes 5292], consideration of the provisions of
DeLuca is not required. See Johnston v. Brown, 10 Vet. App.
80, 85 (1997). Additionally, with respect to the rating
under Diagnostic Code 5293, the Court has held that where a
diagnostic code is not predicated on a limited range of
motion alone, the provisions of 38 C.F.R. §§ 4.40 and 4.45 do
not apply. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996).
Such is the case with Diagnostic Code 5293.
Under the current schedular criteria, as explained above, a
higher schedular rating is not available in the absence of
unfavorable ankylosis. The medical and other evidence of
record, including most recent November 2008 VA examination
report, does not suggest that any loss of function caused by
pain amounts to immobility of the lumbar spine.
Thus, there is no basis on which to assign a higher level of
disability based on 38 C.F.R. §§ 4.40 and 4.45.
Hart considerations
In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held
that staged ratings are appropriate for an increased rating
claim when the factual findings show distinct time periods
where the service-connected disability exhibited symptoms
that would warrant different ratings. In reaching its
conclusion, the Court observed that when a claim for an
increased rating is granted, the effective date assigned may
be up to one year prior to the date that the application for
increase was received if it is factually ascertainable that
an increase in disability had occurred within that time
frame. See 38 U.S.C.A. § 5110 (West 2002). Accordingly, the
relevant focus for adjudicating an increased rating claim is
on the evidence concerning the state of the disability from
the time period one year before the claim was filed until VA
makes a final decision on the claim.
The Veteran filed his claim for an increased disability
rating for his service-connected lumbar spine disability in
March 2003. Therefore, the relevant time period under
consideration is from March 2002 to the present. The
question to be answered by the Board, then, is whether any
different rating should be assigned for any period from March
2002 to the present.
After a careful review of the record the Board can find no
evidence to support a finding that the Veteran's lumbar spine
disability picture was more or less severe during the appeal
period. The Veteran has pointed to none. As was described
in some detail above, in the few medical records available
for the period in question the Veteran has consistently
denied symptoms, or combinations of symptoms, which would
allow for the assignment of a higher rating.
Accordingly, there is no basis for awarding the Veteran
disability rating other than the currently assigned 40
percent for the lumbar spine disability at any time from
March 2002 to the present.
For the reasons and bases expressed above, the Board
concludes that a preponderance of the evidence is against the
Veteran's claim of entitlement to an increased rating for his
service-connected lumbar spine disability. The benefit
sought on appeal is accordingly denied.
Extraschedular rating consideration
Ordinarily, the VA Schedule will apply unless there are
exceptional or unusual factors which would render application
of the schedule impractical.
See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According
to the regulation, an extraschedular disability rating is
warranted upon a finding that the case presents such an
exceptional or unusual disability picture with such related
factors as marked interference with employment or frequent
periods of hospitalization that would render impractical the
application of the regular schedular standards. See 38
C.F.R. § 3.321(b)(1) (2008); see also Fanning v. Brown, 4
Vet. App. 225, 229 (1993).
The AMC adjudicated the matter of the Veteran's entitlement
to an extraschedular rating in the March 2009 SSOC.
Accordingly, the Board will address the possibility of the
assignment of an extraschedular rating for the increased
disability rating at issue.
Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a
three-step inquiry for determining whether a Veteran is
entitled to an extraschedular rating. First, the Board must
first determine whether the evidence presents such an
exceptional disability picture that the available schedular
evaluations for that service-connected disability are
inadequate. Second, if the schedular evaluation does not
contemplate the level of disability and symptomatology and is
found to be inadequate, the Board must then determine whether
the claimant's disability picture exhibits other related
factors such as those provided by the regulation as
"governing norms." Third, if the rating schedule is
inadequate to evaluate a veteran's disability picture and
that picture has attendant thereto related factors such as
marked interference with employment or frequent periods of
hospitalization, then the case must be referred to the Under
Secretary for Benefits or the Director of the Compensation
and Pension Service to determine whether, to accord justice,
the Veteran's disability picture requires the assignment of
an extraschedular rating.
Referral for extraschedular is not warranted because the
third Thun criterion is not met. Specifically, there is no
showing of marked interference with employment or frequent
periods of hospitalization.
With respect to hospitalization, there has been none for the
service-connected lumbar spine disability. Turning to marked
interference in employment, the evidence reflects the Veteran
was employed as an auto mechanic, custodian and special
education teacher in the past, and the November 2008
examination report notes he has been retired since June 2007
due to age.
Although the November 2008 VA examiner indicated there were
"significant effects" on the Veteran's occupational
activities due to the service-connected lumbar spine
disability, such is reflected in the 40 percent disability
rating which is currently assigned. Loss of industrial
capacity is the principal factor in assigning schedular
disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed,
38 C.F.R. § 4.1 specifically states: "[g]enerally, the
degrees of disability specified are considered adequate to
compensate for considerable loss of working time from
exacerbations or illnesses proportionate to the severity of
the several grades of disability." See also Moyer v.
Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose v.
Brown, 4 Vet. App. 361, 363 (1993) [noting that the
disability rating itself is recognition that industrial
capabilities are impaired].
There is also no competent medical evidence of an exceptional
or unusual clinical presentation with regards to the
Veteran's lumbar spine disability. The Veteran has testified
as to use of a back brace to treat his lumbar spine problems,
and reported such to the November 2008 VA examiner. See the
May 2007 hearing transcript, page 14. However, the November
2008 VA examiner specifically indicated the Veteran does not
require an assistive device for his lumbar spine disability
and had no limitations to walking. This is not reflective of
an exceptional disability picture.
The Board therefore has determined that referral of the case
for extraschedular consideration pursuant to 38 C.F.R.
3.321(b)(1) is not warranted.
In conclusion, for reasons and bases expressed above, the
Board finds that a preponderance of the evidence is against
the Veteran's claim of entitlement to an increased disability
rating, in excess of the currently assigned 40 percent, for
his service-connected lumbar spine disability. See Gilbert
v. Derwinski, 1 Vet. App. 49, 53 (1990). The benefit sought
on appeal is therefore denied.
2. Entitlement to an effective date prior to January 20,
2003 for the assignment of a 40 percent disability rating for
the service-connected lumbar spine disability.
Relevant law and regulations
Effective dates
The effective date of an award of increased disability
compensation shall be the earliest date as of which it is
factually ascertainable that an increase in disability had
occurred, if application is received within one year from
such date; otherwise, the effective date will be the date of
VA receipt of the claim for increase, or the date entitlement
arose, whichever is later. 38 U.S.C.A. § 5110(a),(b)(2); 38
C.F.R. § 3.400(o); Hazan v. Gober, 10 Vet. App. 511 (1997);
Harper v. Brown, 10 Vet. App. 125 (1997).
The Court has held that 38 U.S.C.A. § 5110(b)(2) and 38
C.F.R. § 3.400(o)(2) are applicable only where an increase in
disability precedes a claim for an increased disability
rating; otherwise the general rule of 38 C.F.R. § 3.400(o)(1)
applies.
See Harper v. Brown, 10 Vet. App 125, 126 (1997). Thus,
three possible dates may be assigned depending on the facts
of the case:
(1) if an increase in disability occurs after the claim is
filed, the date that the increase is shown to have occurred
(date entitlement arose) (38 C.F.R. § 3.400(o)(1));
(2) if an increase in disability precedes the claim by a year
or less, the date that the increase is shown to have occurred
(factually ascertainable) (38 C.F.R. § 3.400(o)(2));
(3) if an increase in disability precedes the claim by more
than a year, the date that the claim is received (date of
claim) (38 C.F.R. § 3.400(o)(2)).
See Harper, 10 Vet. App at 126. Thus, determining an
appropriate effective date for an increased rating involves
an analysis of the evidence to determine (1) when a claim for
an increased rating was received and (2) when the increase in
disability actually occurred. See 38 C.F.R. §§ 3.155,
3.400(o)(2).
Claims for VA benefits
A specific claim in the form prescribed by the Secretary of
VA must be filed in order for benefits to be paid or
furnished to any individual under the laws administered by
VA. 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a)
(2008).
A claim is a formal or informal communication in writing
requesting a determination of entitlement or evidencing a
belief in entitlement to a benefit.
See 38 U.S.C.A. § 101(30) (West 2002); 38 C.F.R. § 3.1(p)
(2008).
Any communication or action indicating an intent to apply for
one or more benefits under the laws administered by VA, from
a veteran or his representative, may be considered an
informal claim. Such informal claim must identify the
benefit sought.
The date of VA outpatient or hospital examination or date of
admission to a VA or uniformed services hospital will be
accepted as the date of receipt of a claim when the report of
such treatment or examination relates to a disability for
which increased compensation is sought. 38 C.F.R. §
3.157(b)(1) (2008).
Diagnostic criteria
The diagnostic criteria pertinent to the Veteran's service-
connected lumbar spine disability are detailed above and need
not be repeated for the sake of brevity.
Factual background
Service connection for a back disability was granted in an
April 1979 VA rating decision; a 10 percent disability rating
was assigned. The disability was later separated into
disabilities of the thoracic spine and the lumbar spine;
separate
10 percent ratings were assigned.
The Veteran filed an increased rating claim in August 1999.
In May 2000, the RO denied a rating in excess of 10 percent
for the service-connected lumbar spine disability. The
Veteran appealed that decision, and in May 2002 the Board
continued the 10 percent rating assigned to the service-
connected lumbar spine disability.
In a statement received on March 10, 2003, the Veteran
requested reevaluation of the lumbar spine disability. In an
April 2003 rating decision, the RO assigned a
40 percent rating effective January 20, 2003, the date of a
private treatment record submitted by the Veteran along with
his claim. This appeal followed.
Analysis
The Veteran argues that the assignment of the 40 percent
disability rating for his lumbar spine disability should date
back to when he had to stop working as an auto mechanic in
1999 or 2000. See the May 2007 hearing transcript, page 13.
As was described above, in determining an appropriate
effective date for an increased rating, the Board must first
identify the date of filing of the increased rating claim.
The Board then determines when it was "factually
ascertainable" that an increase in disability occurred.
Such date may be before or after the date the claim was
filed, but may be no more than one year prior to the date of
claim.
See 38 C.F.R. § 3.400(o) (2008).
(i.) Date of claim
As has been discussed in the factual background above, the
Veteran's previous increased rating claim was adjudicated and
denied by the Board in May 2002.
The record shows that the Veteran was properly advised of
that decision and of his appellate rights. See the Board's
May 10, 2002 decision, page 23. The Veteran did not appeal
to the Court. The May 2002 Board decision is therefore
final.
See 38 C.F.R. § 20.1100 (2008). The Veteran next filed a
claim for an increased rating for his lumbar spine disability
on March 10, 2003.
The applicable statutory and regulatory provisions require
that VA look to all communications from a claimant which may
be interpreted as applications or claims, formal and
informal, for benefits. In particular, VA is required to
identify and act on informal claims for benefits. See 38
U.S.C. § 5110(b)(2); 38 C.F.R.
§§ 3.1(p), 3.400(o)(2), 3.155(a); see also Servello v.
Derwinski, 3 Vet. App. 196, 198-200 (1992).
A review of the record reveals that there is no communication
from the Veteran or a representative of the Veteran to VA
which can be interpreted as a claim for an increased rating
for the lumbar spine disability after the May 10, 2002 Board
decision and prior to the March 10, 2003 claim for an
increased rating. Neither the Veteran nor his representative
has identified such a claim.
Additionally, there are no reports of VA outpatient treatment
dated in the year prior to March 10, 2003 which could be
construed as an informal claim under 38 C.F.R.
§ 3.157. [The Board notes there is a record from A.M.R.,
M.D., dated January 20, 2003. However, this is a private
record, and the provisions of 38 C.F.R. § 3.157 only apply to
reports of VA treatment.]
Accordingly, the date of the increased rating claim is March
10, 2003.
(ii) "Factually ascertainable"
The Board's inquiry now shifts to the date entitlement to an
increased rating arose, that is when it was factually
ascertainable that an increase in disability occurred. The
time frame in question starts a year before the March 10,
2003 claim, i.e., on March 10, 2002.
There are no pertinent medical records dated between March
10, 2002 and January 20, 2003. The evidence shows that
disability consistent with the assignment of a 40 percent
rating under Diagnostic Code 5292 was first medically
identified on January 20, 2003. At that time, the Veteran
first reported a severe level of lumbar spine pain which
interfered with daily living, work and personal activities.
The examiner further noted upon physical examination and the
range of motion in the Veteran's spine was "overall severely
reduced with signs of pain and trembling." Such findings
are consistent with severe loss of lumbar spine motion,
warranting the assignment of a 40 percent rating under former
Diagnostic Code 5292.
Therefore, the RO's choice of an effective date of January
20, 2003 for the 40 percent rating was correct, as this
corresponds with the date of medical evidence reflecting an
increase in disability, i.e., this is the date as of which it
was "factually ascertainable" than an increase in
disability had taken place. See 38 C.F.R.
§ 3.400(o)(2).
In conclusion, for reasons and bases expressed above, the
Board finds that an effective date of January 20, 2003 was
correctly assigned for the 40 percent disability rating. The
benefit sought on appeal is accordingly denied.
Additional comments
To some extent, the Veteran appears to be raising an argument
couched in equity, in that he contends that his lumbar spine
disability was worse prior to the filing of his claim and
that he should be compensated therefor. Setting aside the
fact that the medical evidence does not indicate a worsening
of the disability until January 20, 2003, the Board is bound
by the law and is without authority to grant benefits on an
equitable basis. See 38 U.S.C.A. §§ 503, 7104 (West 2002);
see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). As
has been described in detail above, the Board has decided
this case based on its application of this law to the
pertinent facts.
Although it is somewhat unclear, it appears that the Veteran
may be contending that the May 2002 Board decision contained
clear and unmistakable error (CUE).
See the Veteran's undated statement, received at the RO in
June 2004, in which he states "my claim for rating increase
has been unjustly denied due to "Clear and Un-mistakable
Errors committed by the VA".
Any claim of CUE must be pled with specificity. See
38 C.F.R. § 20.1404(b) (2008); see also Andre v. West, 14
Vet. App. 7, 10 (2000), aff'd sub nom., Andre v. Principi,
301 F.3d 1354 (Fed. Cir. 2002). If the Veteran is in fact
attempting to allege CUE in the prior Board decision, he is
referred to 38 C.F.R. § 20.1400 et seq. as to the appropriate
procedure for filing such claim.
(CONTINUED ON NEXT PAGE)
ORDER
Entitlement to an increased disability rating for the
service-connected lumbar spine disability is denied.
Entitlement to an effective date prior to January 20, 2003
for the assignment of a 40 percent disability rating for the
service-connected lumbar spine disability is denied.
____________________________________________
Barry F. Bohan
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs